HR Horror Stories for Halloween

Double, double, toil and quite a lot of trouble.

While ghosts and ghouls may scare some, the spooky season may have some hidden jump scares that an employer may like to watch out for. One misjudged trick could lead to the “treat” that is the employment tribunal. In this blog, we will explore some key employment law considerations surrounding Halloween celebrations and discuss how an employer can navigate this eerie terrain.

Learn from the mistakes of others, here are some HR nightmares that would spook any employer.

Read on if you dare….

Pagan Witches

For many Pagans Halloween is a highly significant time of the Celtic pagan calendar where the boundary between the physical world and the spirit world is blurred. The 2021 Census revealed there are 73,737 people who identified as Pagan in England and Wales.

One such employee was the claimant in the case of Holland v Angel Supermarket Ltd and another. The Claimant was a practising Wiccan, a form of modern paganism, who worked in a supermarket. She agreed with her line manager that her shift pattern would be changed so that she would not work her usual shift on the evening of 31 October to allow her to celebrate All Hallows Eve. She claims her line manager looked at her in disgust, and said, “you’ve got to be a Christian surely” and made further derogatory comments about broomsticks.

On 6 November the claimant attended the workplace and was dismissed outside in the street as she described, “by the bins.” The supermarket claimed that she was selected for redundancy due to the downturn in business and later claimed to have CCTV footage of her committing theft.

Religion and protected belief is one of nine protected characteristics set out in the Equality Act 2010 (EqA 2010). An employer is prevented from treating an employee less favourably because they hold a certain religion or protected belief (direct discrimination) or from applying a provision, criterion or practice that disadvantages employees of a particular religion or belief without objective justification (indirect discrimination). Section 10(1), EqA 2010 says that this protection applies to “any religion” and the explanatory notes make clear that this is intended to be “a broad definition in line with the freedom of thought, conscience and religion.” Harassment was not claimed in this case, but occurs where employee A engages in unwanted conduct related to a religion or protected characteristic which has the purpose or effect of either violating employee B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for employee B.

Under section 136 EqA 2010, when looking at the facts of the case, if there is an absence of any other explanation other than discrimination, the burden of proof shifts from the employee to the employer to show that there has been no discrimination.

The tribunal rejected the employer’s evidence, finding that the claimant had been subjected to discrimination on the grounds of her religion and that a hypothetical Christian who had changed shifts to be able to celebrate a feast day which was not a public holiday would not have been subjected to the same type of derogatory comments. The claimant had also demonstrated less favourable treatment in relation to her dismissal as she was selected over her two colleagues (one Christian and one Muslim). In coming to this conclusion the tribunal looked at the “juxtaposition” of the derogatory comments, the decision to dismiss the claimant, the lack of a genuine redundancy situation and the untruthful statements about the reason for dismissal meant that the burden of proof had shifted and that it was now for the employer to prove the absence of discrimination.

Employers need to ensure that employees are aware that any discriminatory comments made about someone’s religion will not be tolerated.

“Pimp” Fancy dress

While the idea of being seated at a computer screen wearing a fancy dress may sound a little uncomfortable, there are many workplaces where such conduct would be appropriate or even encouraged.

An example of this is in the case of Brown v Young & Co’s Brewery. Mr Brown was of black Caribbean heritage and was employed as a supervisor in a pub outside the Westfield shopping centre. Employees were encouraged to dress up to provide a “fun environment for customers” and staff members were provided with promotional hats to wear. Mr Brown’s manager made comments to staff members such as, “you look sexy” and, “you look like Robin Hood,” however, he said to Mr Brown, “you look like a pimp.” Mr Brown brought a tribunal claim alleging racial harassment as the word “pimp” was associated with black men in popular culture.

The employer sought to rely on an Urban Dictionary to show that the word had no stereotypical connotations with regard to race, and showed the tribunal a google search of the word “pimp” displaying images of both white and black men. The tribunal noted that, included in this google search, there was an image of Barack Obama, as a “pimp.” Obama is “perhaps the most famous black man in the world” and there were no images of famous white leaders, such as David Cameron or Vladimir Putin. The tribunal debated etymology of the verb, “pimping” with the assistance of Wikipedia and hip-hop lyrics.

The tribunal concluded that the word “pimp” does have racial connotations and Mr Brown’s manager had subconsciously made connection between race and the word “pimp.” Despite this being a single comment made on one occasion, it violated Mr Brown’s dignity and was insulting and therefore amounted to racial harassment. Compared to the more positive comments made to Mr Brown’s white colleagues, which were regarded by the tribunal as positive adjectives, Mr Brown had suffered less favourable treatment and direct discrimination.

Compulsory Halloween parties 

Much like the Christmas party, any workplace Halloween party should be handled with care and the required standard of behaviour clearly communicated to employees.

One employee that was made to feel uncomfortable at such an event was the claimant in the case of X v Y. The claimant worked in a call centre that raised money for charity and held a fancy-dress party each year to raise money. The party was compulsory, and the claimant was not allowed to opt out of the event. Some male members of staff often dressed as female celebrities during these events and used effeminate voices, made limp wrist gestures and inappropriate comments to the claimant about looking up their skirts. The claimant, who was homosexual, found these comments to be highly offensive and derogatory towards gay men.

The tribunal agreed and found that the claimant had been harassed on the grounds of his sexual orientation as the behaviour of the other staff members created a hostile and humiliating atmosphere for the claimant.

Dressing up or attending Halloween themed events should not be compulsory.

Social media and inappropriate pictures

What employees post on social media can be just as much of a covern to employers as what they do in the workplace and posting pictures at Halloween is one example. Welsh Rugby player, Liam Williams was forced to issue an apology after pictures emerged, showing him in black face paint when he dressed as black footballer Wilfred Bony for Halloween. An employer should ensure that their social media policy is up to date and that employees are aware that even conduct outside of the workplace can lead to disciplinary action.

Workplace pranks

The workplace conflict in the case of Biggin Hill Airport v Derwich started online, when one employee unfriended the other on Facebook when she was promoted. So offended was the unfriended employee that she set out to get her revenge and she and two other employees decided to change the screensaver of the newly promoted employee. The employer found that the three employees had first searched the terms “middle finger”, “one finger death punch” and “up her a***” before settling on a picture of a witch to use as the new screen saver.

The airport investigated the incident and the unfriended employee admitted to changing the screen saver because the picture of the witch looked very like the newly promoted employee. The airport dismissed her and she claimed that there had been procedural failing in the way that the airport had managed the process that included not being informed of the full allegations or that they could amount to gross misconduct, not being provided with all of the evidence and being given insufficient time to prepare her case. She was allowed to appeal, however, the decision was upheld and she brought an employment claim.

The tribunal held that the key question when judging whether a dismissal is reasonable is whether the disciplinary process as a whole, is fair, and that whilst the original disciplinary process was flawed, the appeal had remedied this procedural failure and the two needed to be looked at together. The dismissal was therefore fair.

In the spirit of Halloween, where costumes can hide true identities, it’s essential for employers to encourage open communication and uncover any issues lurking under the surface or skeletons in the closet. By setting clear guidelines, conducting training, and maintaining up to date policies, employers can ensure that they don’t make decisions that come back to haunt them.

Should you have any queries in relation to the changes and their potential effect on your business or practical advice as to what steps can be taken, please contact Charlotte Gittins or any other member of the Edwin Coe Employment Team.

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